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legal: housing
Following the legal routes to

securing a long-term home

Everyone needs a roof over their heads – but do social services or housing
authorities have to provide one? Belinda Schwehr sets out the law behind
getting a home and how authorities may obstruct this

ocial services departments have a Wanting a tenancy take a tenancy on, contractually, with a
duty to provide housing in only People with learning disabilities who want landlord, as some sort of precondition of
Sexceptional circumstances, but a tenancy can include those already receiving care. Both positions are wrong.
these are worth knowing about. accommodated, albeit not ideally, in a However, that does not mean that care
care home, or housed by their relatives commissioners have to find let alone
People with section 117 rights and receiving home care. They have been provide a home for everyone who wants
Mentally unwell patients sectioned in told that they “could” or “should” have or needs one.
psychiatric facilities with rights to the opportunity to move into the
aftercare under section 117 of the Mental community into a tenancy with housing Housing versus social services law
Health Act are often told by social benefit to pay the rent. Housing authorities have separate, distinct
workers: “There’s nowhere suitable legal duties to people who are homeless or
available right now.” threatened with homelessness. However,
These officers do not seem to know that “ No reasonable social they only have to secure longer-term
the s117 aftercare function enables them services authority could housing for people who are in “priority
to arrange whatever the individual needs need”, which can include people who are
to meet aftercare requirements, and that have left the need to be vulnerable because of learning disabilities.
best endeavours must be made to get rehoused urgently out of a However, the thinking in housing
these needs met. authorities often goes like this: if the
This principle means implicitly that social care assessment person is owed a care-related duty under
staff need to make a formal decision ” the Mental Health or Care Act, the housing
(sooner rather than later, but certainly authority does not have to accept them as
within six months) as to what is needed Those with capacity to understand the “homeless and being in priority need” –
for the rest of the discharge aftercare plan difference may well want to get out of a they will be sorted out by the liable body.
to work feasibly. care home and move into supported living A housing authority may also say a person
This includes determining whether of their choice, along with chosen, is intentionally homeless as they lost their
having somewhere stable to live is, in compatible co-tenants. However, these home because of challenging behaviour,
their professional judgment, an essential homes and how they are managed are which reduces the duty owed; guidance has
part of this. They cannot just say: “We unregulated by the Care Quality always said people with mental illness or
don’t ever provide housing.” Commission, unlike care homes. capacity issues should not be regarded as
If they considered this question intentionally homeless purely because they
properly, they would then have to fund What happens in practice? have broken tenancy terms – they may
the actual accommodation instead of People seeking a tenancy are often have lacked the capacity to have had any
taking ages to get tenancies and housing directed by their local authority towards insight into the impact of their decisions.
benefit sorted out to cover the rent, a vacancies in co-tenanted houses with only Flagging that up can only help, we think.
route that is obviously better for public a single, onsite provider, on a block But what can be done about that “liable
bodies but less unambiguously so for contract at a shared care price. Such body” hurdle to that homelessness duty?
those who qualify. arrangements cannot easily be changed to
This necessity to provide housing can those where tenants have individual Care Housing authority duties
arise in law for s117 commissioners Act budgets. Here’s what to raise with the housing
if a suitable tenancy in a supported An alternative is a setting with low-level department if one is knocked back to
living house with an onsite specialist services available from a housing provider social services or s117 planners for a roof.
provider cannot be accessed within a through its own support service. People The existence of clear or likely Housing
reasonable time; this can be because are not encouraged to take direct Act duties (ie when a person cannot be
there is no vacancy or the care is payments. In this way, shared care seen as anything other than homeless)
not regarded as “affordable” by elements expand and individualised explicitly excludes or is more important
the commissioners. packages shrink. than any possible Care Act legal
It can also arise if the intended tenant Councils and clinical commissioning obligations to provide accommodation, at
will not apply for housing benefit or groups (CCGs) seem to think that, by least in the first instance. This is because
will not qualify for enough funding if the withholding a care offer, they can stop a of the principle that other agencies’
type of landlord means that housing person from signing a tenancy elsewhere. primary or more direct duties come first,
benefit entitlement is restricted. They also think they can make a person before others that are less explicit.

8 Vol 33 No 1 | Autumn 2019 Community Living www.cl-initiatives.co.uk